TMI Blog1989 (3) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... , the claim was required to be treated as in the time. 4. They have filed this petition against the order of the Collector (Appeals). It was their contention that the refund claim was required to be received and dealt with in terms of Section 11B which specifically mentions that any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before expiry of six months from the relevant date. 5. When there is a clear provision in law, the claimants are required to file their claim before the Assistant Collector, and filing it before any other officer was neither correct nor proper and in view of the language of Section 11B it is the date of receipt of the claim in the Assistant Collector s office (and not the Supdt. s office) which was relevant for computing the time-limit. In support of this contention they would cite the order of the Tribunal reported in 1984 E.L.T. (16) 647 (Tribunal). In this view of the matter their appeal may be accepted and the order of the Collector (Appeals) may be set aside. 6. The learned Counsel for the respondent, Shri Ganguly, stated that in the case, admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter of fact, this trade notice was intended to change the earlier practice under which the assessee could file refund claims even with the Supdt. It was his contention that once this trade notice had been issued, the appellants should have taken care to follow the procedure prescribed therein and file their claims directly with the Assistant Collector within the normal time prescribed by law. It was his contention that the learned Collector (Appeals) should have taken this trade notice into account and also the fact that this trade notice was consistent with the provisions of law in accordance with the refund claims were required to be filed before the Assistant Collector. 12. The learned Counsel stated that the main point here is that Rule 173L, under which the claims has been filed, had not undergone any change and, therefore, once the claim was filed in accordance with the provisions of this rule within the time prescribed therein, it should have been treated as within time and allowed accordingly. 13. In response to Court question regarding the legal value of trade notice, both sides had nothing in particular to say in the matter and reiterated their respective stand. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny factory, the date of entry into the factory for the purposes aforesaid. 22. These two paragraphs read together would go to show that Section 11B covers refund claims filed with reference to Rule 173L and Rule 173L merely lays down the condition which are required to be satisfied and, therefore, claims have to be scrutinised with reference to the provisions of Rule 173L; but they have to be filed within time allowed by Section 11B before the authorities prescribed by Section 11B. 23. We observe that this is a case of refund in which the application was filed with reference to Rule 173L but was rejected as time-barred under Section 11B. 24. We have gone through the submissions of both the sides. We find that there are two important issues involved in this case - (1) whether Rule 173L is independent of Section 11B; and (2) whether Section 11B applies to such cases. 25. In so far as the first issue is concerned, we find that the learned Counsel has drawn our attention to the Tribunal s order in the case of Sarabhai Chemicals in which it has been observed inter alia that Rule 173L is a complete code regarding refund of duty on goods returned to factory. We agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed, the Superintendent should have returned the same forthwith advising them to follow the public notice. As public officers it is the duty of the officers of the department to properly guide and advise the public. In any case, it was not expected of them to deliberately do or omit to do a thing by which they knew that an undeserved suffering or loss would be caused to the public. In the instant case, in view of the change in practice, the responsibilty of the departmental officers in this respect was all the more. In any eventuality, if the Superintendent had chosen to not only receive but retain the documents and scrutinise them as in the past inspite of the trade notice it amounted to continuation of the past practice by the officers of the Division and once the officer had chosen to do so, he ought to have ensured that the papers reached the Assistant Collector within the prescribed time if it was the department s view that they should reach the Assistant Collector before the expiry of the time-limit prescribed under Section 11B. It will be unfair to let the appellant suffer in a case which involved a technical error, of not following the Public Notice, on the part of bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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